Amending FIFRA -- An Industry View

Amending FIFRA — An Industry View

Kenneth W. Weinstein

Kenneth W. Weinstein is a partner with McKenna, Conner & Cuneo, Washington, D.C.

Once again, as in the past several years, it appears that Congress will consider amending the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). A coalition of environmental groups, led by the Natural Resources Defense Council, has suggested legion amendments ("The Federal Pesticide Reform Act of 1985") which would largely rewirte the law. Senator Proxmire (D. Wis.) introduced S. 309 to amend FIFRA on January 29, patterned after the environmentalists' proposal.¹

The Environmental Protection Agency (EPA) drafted a less ambitious set of proposed amendments, but these were quashed by the Office of Management and Budget. Nevertheless, Congressman Bedell (D. Iowa), Chairman of the Subcommittee on Department Operations, Research and Foreign Agriculture of the House Agriculture Committee, has made known his desire to assemble a bill bassed on the EPA draft.² Congressman Heftell (D. Hawaii) has introduced the "Pesticide Import and Export Act of 1985," H.R. 1416, which would amend the export provisions of FIFRA.³

At a time when EPA is fully occupied implementing the laws already on the books, it seems appropriate to question the wisdom of spreading EPA's scarce resources even thinner. Despite the calls of some for a variety of new legislation, many in industry believe that the most imperative problems in the pesticide regulation program can and should be addressed within the existing statutory framework. They doubt that these problems will be resolved by creating new legislative mandates for an already overburdened agency, and suggest that it would be more sensible to provide EPA with greater resources with which to implement the present law.

Although there seems to be an incessant clamor for more and more regulation from some quarters, the current state of pesticide regulation must be viewed in perspective. Critics of pesticides have yet to demonstrate that any human has suffered serious injury from the proper use of a pesticide chemical. Although many real hazards to human health and the environment from toxic substances have been identified, pesticide use is not one of them. Due to widespread publicity sometimes given to unfounded and unsupportable charges, the level of public concern about pesticides has been heightened. Yet the fact remains that the proper use of pesticides has not caused any human tragedies and does not pose the kind of serious health risks that can arise from toxic waste dumps, for example.

The single overriding purpose of pesticide regulation is to ensure that products are properly tested. Toxicological and environmental testing is the cornerstone of FIFRA. While there can be no real dispute that new pesticides are subjected to a rigorous testing regimen, there is a clear need to update the testing of older products. If industry, environmentalists, and government regulators agree on anything, it is that older pesticides should be retested and reevaluated expeditiously. No task is more important to the implementation of FIFRA, or to the public credibility of EPA's pesticide program. All of the proposed legislative tinkering with FIFRA pales in importance when compared with this project.

Many in industry believe that to accomplish the reevaluation and "reregistration" of older pesticides, EPA does not need more laws but more money. The legal tools — and the intent to use them — are already there. The bar to their achievement is the lack of sufficient resources.

FIFRA already empowers EPA to ask manufacturers to supply "additional data to support existing registrations." The agency can establish timetables for conducting the new testing, and if the data are not secured "within the time required by the Administrator," the agency can suspend the registration of the pesticide. Once the updated testing is obtained, EPA is required to reevaluate and "reregister" the product "in the most expeditious manner practical." Thus from the industry's point of view, there is little point in discussing new pesticide legislation when EPA should be devoting its primary attention to the clear legislative mandate to accomplish this all-important reevaluation and retesting.

EPA's managers have demonstrated that they are fully committed to implementing this mandate, within the limits of their resources. John Moore, EPA's Assistant Administrator for Pesticides and Toxic Substances, testified before Congress on April 18 about the seriousness with which EPA has moved to "call-in" the needed new test [15 ELR 10131] data for existing pesticides.Once these toxicological and environmental data are received by EPA, however, they must be carefully evaluated, and that is a time-consuming and resource-intensive task. It is here, if anywhere, that Congress should focus its attention: Congress must ensure that EPA has adequate resources to complete the evaluation of the new scientific data in the most timely way.

Aside from the reregistration project, other proposals for regulatory reform have been aired. Yet the case for legislative change does not seem compelling. For example, environmental groups have proposed creating a "right to know" provision in FIFRA. The justification for such an amendment seems to be lacking in view of the fact that FIFRA already provides for public disclosure of all health, safety, and environmental data on pesticides, and empowers EPA to require comprehensive labeling and warning statements on pesticide effects.

Similarly, EPA's unofficial proposal to legislatively change the procedure for cancelling pesticides from one of adjudication to rulemaking seems to ignore the reality that rulemaking procedures — with required referrals to the FIFRA Scientific Advisory Panel, the United States Department of Agriculture, and appropriate congressional committees — are not likely to be any more efficient than the current adjudicatory system. Instead, there are undoubtedly creative ways in which to streamline the cancellation process within the framework of the existing structure. While many in industry question whether there is any real need for legislation, the industry too has its list of legislative objectives if FIFRA is to be amended. Prime among these are changes concerning the authority of states and political subdivisions to regulate pesticides. The proliferation of pesticide restrictions by counties, cities, and townships has led to a confusing melange of regulations that impose unwarranted hardship on farmers, foresters and other users. Amendments are desired which would prevent uncoordinated regulation by political subdivisions. These amendments also would make it clear that only EPA is capable of establishing nationwide pesticide residue tolerances for agricultural crops, and would prevent states from making the lack of essentially of a pesticide a criterion in regulating their sale and use. This kind of state activity could lead to government sanctioned monopolies and restrict the number of alternative products available to users.

Other segments of the industry would like to see a better accommodation in FIFRA of the proprietary protections for research data and the data licensing system that currently exists. The data compensation and licensing scheme has been subject to legal challenge since its enactment, and has engendered widespread dissatisfaction because it is cumbersome and unpredictable. A different kind of system was approved by the House of Representatives in 1982 (but was not acted on by the Senate). Under this system, research data were granted a fifteen-year period of exclusive use, during which the data could not be referenced by other registrants. A system along these lines may be preferred.

The industry will no doubt have other amendments on its agenda if the legislative process moves forward. Political necessity and reality will govern the fate of the proposed legislation, but the present pesticide program will serve the public well as long as it is adequately financed and competently managed.

1. 131 CONG. REC. S773, S786 (daily ed. Jan. 29, 1985) (bill reprinted), see 15 ELR 10051 (Feb. 85).

2. On May 6, Rep. Bedell introduced a one-year reauthorization bill as an interim measure. H.R. 2355, 131 CONG. REC. H2874, H2853 (daily ed. May 6, 1985) (bill reprinted).

3. 131 CONG. REC. H1047, E759 (daily ed. Mar. 5, 1985) (bill reprinted), see 15 ELR 10086 (Mar. 1985).